10.18.2010

A federal judge said Monday that he would rule before year's end on whether the health overhaul violates the Constitution, and he seemed sympathetic to the plaintiff's core argument.

In a two-hour hearing here, U.S. District Judge Henry Hudson pressed both sides on a case that could reshape the sweeping health law President Barack Obama signed in March. The case, one of 20 filed so far challenging the law, is considered among the most crucial because it is the furthest along of the state-led lawsuits.

Virginia, led by its Republican attorney general, wants the entire law struck down on the grounds that it violates the Constitution by requiring most Americans to carry health insurance or pay a fee. The Obama administration counters that Congress can levy the fee under its constitutional power to regulate interstate commerce, or under its taxation power.

Judge Hudson's sharp questioning offered some clues as to how he views each side's case. He showed sympathy for the plaintiff's contention that requiring Americans to carry health insurance amounts to regulating "inactivity," and that Congress lacks such a power.

"You collapse federalism and create a national police power," Duncan Getchell, state solicitor general for Virginia, told a packed courtroom.

Allowing such power, Judge Hudson said, could open the door for the federal government to require residents to buy a car, join a gym and "eat asparagus," he said. "It's boundless."

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Judge Hudson said he expected the case would end up at the U.S. Supreme Court. Most legal experts predict the administration will ultimately prevail, but they don't rule out the opposite outcome. If plaintiffs prevail in the early stages, it could throw a wrench in the law's early implementation.